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New tax laws create windows of opportunity

The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the 2010 Tax Act) was enacted on December 17, 2010. It makes significant changes to the estate, gift, and generation-skipping transfer (GST) tax laws for 2011 and 2012 and creates important wealth-transfer opportunities in the short term. Unless Congress acts in the next two years, these new rules will disappear in 2013, and the estate, gift, and GST tax laws will return to 2001 levels, with higher rates and lower exemptions.

Important Changes for 2011 and 2012

The estate, gift, and GST tax exemptions have been increased to $5 million. The top tax rate has decreased to 35 percent. The 2010 Tax Act provides for “portability” of the estate tax exemption—that is, a decedent’s unused estate tax exemption may be transferred to his or her surviving spouse.

Your current estate plan should be reviewed in light of the new law. For example: (1) If your plan utilizes a “formula” gift— that is, if the size of a gift is determined by reference to the estate or GST tax exemptions—or caps the amount passing to an exempt GST trust, you should contact us promptly. The new tax laws may distort your wishes. (2) Under prior law, it could be problematic for a married couple to hold a high portion of their assets jointly.With the addition of “portability” of the estate tax exemption, joint property now is less of a tax issue for some, at least in the short term. There may, however, still be important reasons to hold property in separate names.

Planning Opportunities … At Least for Two Years

With the increased gift tax exemption, an individual who has previously given the pre-2011 maximum of $1 million ($2 million for a couple) will be able to give, outright or in trust, an additional $4 million ($8 million per couple) without incurring gift tax.

The increased GST tax exemption will provide opportunities to transfer more assets to grandchildren or more remote descendants, outright or in trust.

Other Opportunities

Grantor Retained Annuity Trusts. Although some commentators expected new estate tax legislation to include provisions reducing the tax benefits of grantor retained annuity trusts (GRATs), the 2010 Tax Act does not do so. Accordingly, the window of opportunity for GRATs remains open. If you are contemplating creating a new GRAT, you should contact us as soon as possible.

Valuation Discounts. Likewise, although there has been speculation regarding proposed restrictions to the rules governing valuation of intra-family transfers, the 2010 Tax Act does not contain any restriction on valuation discounts.With many businesses and real estate valuations still low, this may present an additional opportunity to transfer assets on a tax-favored basis.

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